1 Crown Office Row chambers in London advised on 19th November that, in the latest volume of Judicial Review, Angus McCullough QC and Shaheen Rahman QC consider the approach to “disclosure” in closed material proceedings (CMPs. They address the background and rules of disclosure that govern the interface between open and closed material in CMP, as they arise in different contexts, and in different courts and tribunals. The impact of fair trial rights (Article 6) under the ECHR, and the effect of EU rights, is analysed and current areas of debate explored. CMP are proceedings where the material available to one side is not available to the other side. This can be in, for example, cases where sensitive material is involved in deportation cases based on grounds of national security. The article explains the history of the development of CMP under the English common law, with the original CMP was established by the Special Immigration Appeals Act 1997 to deal with deportation decisions taken on grounds of national security. They involve use of specially-cleared advocate acting on behalf of the defendant/respondent, rather than that person’s own lawyer. The article warns that, since the Justice and Security Act 2013, an application for a CMP may be made in any civil proceedings. The extension of use of CMP has been into areas that one might have anticipated – related to terrorism and proscribed organisations, asset freezing, and security vetting; but the 2013 Act creates the possibility of their use in other, perhaps less obvious, cases, with each judged on their particular facts.
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